Appeal in the cases noted in this Bulletin on 6 November 2019 have been dismissed : (2020);EWCA Civ 1017. Asplin LJ said at para 46 : “ … the authorities do not support the proposition that a transaction should not be regarded as genuine or a scheme should be considered to be contrary to the public interest on the grounds that their effects might be considered by some to be socially reprehensible.” At para 48 she said : “ Nor can it be relevant that each of the sequence of events is pre-determined…the pre-determined use of an SPV to which assets are transferred is a familiar feature in many corporate reconstruction schemes. Taking time in advance, to decide which steps to take, cannot of itself render the steps themselves contrary to the public interest.” At paragraphs 54-57 she said that once it is accepted that a step is genuine and not a sham, “ it cannot be undermined by the motive behind its creation.” The fact that the purpose for which a transaction has been entered into can be characterised as artificial in no way invalidates the transaction if it is not a sham. The fact that a device has been adopted in order to avoid legislative consequences cannot be taken into account in construing a document to find out what the true nature of the transaction is. One has first to find out what is the true nature of the transaction and then see whether and if so how the legislation operates upon that state of affairs. Floyd and Newey LJJ agreed.
Systemic Unfairness
July 24th, 2020 by James Goudie KC in Decision making and ContractsAs an aspect of the rule of law, it is for the Court to assess what fairness requires. That is to be determined in the particular case-specific context. So too the Court will determine in that context whether the procedure adopted meets those requirements. This is the case both when an individual decision is challenged and when a challenge is advanced on the ground that the arrangements themselves are systemically or inherently unfair.
Combined Authority
July 20th, 2020 by James Goudie KC in Decision making and ContractsThe draft Barnsley, Doncaster, Rotherham and Sheffield Combined Authority ( Functions and Amendment) Order proposes (1) for certain functions to be exercised by the Combined Authority and its Mayor and (2) changes to governance and constitutional arrangements. The functions to be exercised by the Combined Authority relate to transport, education, skills and training, and housing and regeneration.
The proposed governance and constitutional arrangements deal with issues such as the appointment of political advisers, the establishment of an independent remuneration panel, and the ability of the Mayor to cast a deciding vote. The Order also proposes initial measures to create a Mayoral Development Corporation in the Combined Authority’s area.
Environmental Information
July 17th, 2020 by James Goudie KC in Environment, Highways and LeisureThere is an exception to the duty under Directive 2003/4 and the Environmental Information Regulations 2004, S.I. 2004/3391, to disclose environmental information, when the request for disclosure involves the disclosure of “ internal communications”. What are they? They are not defined in the Directive. Read more »
Socio-Economic Disadvantages
July 17th, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyIt is now over 10 years since the enactment of the Equality Act 2010. Yet the UK Government has not elected to commence Part 1 of the Act. Part 1 relates to socio-economic inequalities. It consists of Sections 1-3 inclusive. It has been commenced in Scotland. The Welsh Government has now announced that it will come into force in Wales on 31 March 2021. The announcement is accompanied by non-statutory Guidance, “ A More Equal Wales : Preparing for the commencement of the Socio-Economic Duty “, accompanied by a Factsheet.
The duty is a requirement on relevant bodies, which include local authorities, when taking “ strategic decisions”, to “have due regard” to the need to reduce the “ inequalities of outcome” resulting from “ socio-economic disadvantages”.
General Power of Competence
July 10th, 2020 by James Goudie KC in Decision making and ContractsIn R (JP) v Croydon CCH & Croydon LBC (2020) EWHC 1470 (Admin) the claimant advanced what Mostyn J, at para 46, described as “an adventurous argument” that GPOC, under Section 1 of the Localism Act 2011 (LA 2011), empowered the local authority (LA) to provide medical care, notwithstanding that this was clearly within the remit of the NHS/CCG. In rejecting this argument found that there was a limitation pre the commencement of LA 2011. The limitation under Section 2(2)(a) expressly applied, by virtue of Section 75 of the National Health Service Act 2006 (NHSA 2006) and the NHS Bodies & LAs Partnership Arrangements Regulations 2000, which clearly delineated the boundaries between the NHS and Las as to what could be provided by whom. GPOC could not be used to usurp decisions reposed in the NHS and NHS bodies. LA 2011 should not, para 48 be construed as “driving a coach and horses through very carefully delineated frontiers of competence and function”.
Section 10(1) of the Children Act 2004 and Section 82 of NHSA 2006 promoted CCG/LA co-operation, but, para 51, these are “macro or target duties” and it is “extremely doubtful” whether they confer a justiciable right on individuals.